BVA9410779 DOCKET NO. 92-24 709 ) DATE ) (RECONSIDERATION) ) ) THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder other than post-traumatic stress disorder. 2. Entitlement to service connection for post-traumatic stress disorder. 3. Entitlement to a permanent and total disability rating for pension purposes. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from August 1970 to April 1972. By decision dated in May 1993, the Board of Veterans' Appeals (the Board) determined that new and material evidence had not been submitted to reopen the veteran's claim of entitlement to service connection for a psychiatric disorder. This decision also denied his claim of entitlement to a permanent and total disability rating for pension purposes. Following receipt of the Board's decision, the veteran filed a Motion for Reconsideration. He also appealed the Board's decision to the United States Court of Veterans Appeals (the Court). In August 1993, the Board granted his Motion for Reconsideration. In view of that action, the Department of Veterans Affairs (VA) filed a Motion for Remand with the Court. In an order dated November 1993, the Court remanded the case to the Board for reconsideration of its May 1993 decision. The veteran has referred in various documents he submitted to injuries he sustained while in service. He has also asserted that he entered service with a "structural limb deficiency". Since these matters were not developed or certified for appeal, and inasmuch as they are not inextricably intertwined with the issues currently before the Board, they are referred to the RO for appropriate action. In October 1993, the veteran indicated that he did not wish to be represented. However, the record raises questions as to the veteran's ability to act on his own behalf, and his attorney has continued to communicate with VA. The RO, therefore, should obtain clarification as to the veteran's representation. REMAND The veteran has asserted that he is unable to work as a result of his disabilities. In this regard, it is noted that he has apparently been an inpatient at the Feliciana Forensic Facility since November 1988. However, the records of any treatment he has received or examinations that have been conducted at that facility have not been associated with the claims folder. Moreover, the record reflects the fact that the veteran is in receipt of Social Security benefits, but it is not clear whether all the medical records employed in reaching that determination have been procured. The Court has issued several decisions which have had a substantial impact on the adjudication of pension cases. In Roberts v. Derwinski, 2 Vet.App. 387 (1992), the Court held that each disability in a pension case must be assigned a percentage rating, that the RO should discuss the diagnostic codes used in denying a claim, that a rating decision may not be based on an examination which was conducted before all relevant evidence was gathered, and that the effect of pain on employability must be addressed. In Brown v. Derwinski, 2 Vet.App. 444 (1992), the Court held that a pension claim must be considered under both the average person, 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. § 4.15 (1993), and the unemployability standards, 38 C.F.R. §§ 3.321, 4.17 (1993). In Masors v. Derwinski, 2 Vet.App. 181 (1992), the Court held that VA must obtain the records underpinning a Social Security Administration determination which grants disability benefits to the claimant. The development in this case is inadequate in light of these Court decisions. The veteran has also referred to a claim for service connection for post-traumatic stress disorder (PTSD). The United States Court of Veterans Appeals has held that a claim which is inextricably intertwined with another claim which remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim. Harris v. Derwinski, 1 Vet.App. 180 (1990). However, the RO has not formally adjudicated the issue of entitlement to service connection for PTSD. In addition, the Board notes that while he has stated that three of his friends were killed and that he was struck by shrapnel in Vietnam, he has not submitted a formal "stressor" statement. He testified during a hearing at the RO in April 1992 that he was treated by a psychiatrist while in Vietnam. (Tr. P. 5). The only service medical records available are the entrance and discharge examinations. He has also stated that a psychologist first diagnosed PTSD in 1985, and that, subsequently, two other psychologists concurred with that conclusion. Although he provided their names (Bates, Davis and Vossburg), he did not furnish their address or indicate when he had been treated by them. In Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court set forth procedures for VA to follow in adjudicating claims for service connection for PTSD. The Court concluded that the statutory and regulatory criteria provided a framework in which the evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." Where it is determined, through recognized military citations, or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be credible and "consistent with the circumstances, conditions, or hardships of such service". (emphasis added) 38 U.S.C.A. § 1154(B); 38 C.F.R. § 3.304(d), (f); Manual M21-1, Part VI, Para. 7.46(e), (f). If VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor, unless it is substantiated by service records. Id. The Court further held that even if it is found that there was a stressful event in service, it must still be determined whether that stressful event was of sufficient gravity to support a diagnosis of PTSD as required in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (3d. ed. 1987) (DSM-III- R). The essential feature of PTSD is "a psychologically distressing event that is outside the range of usual human experience." The most common traumata involve a threat to one's life, a threat to the lives of one's friends, or seeing another person who has recently been seriously injured or killed as the result of an accident or physical violence. Id. at 247, 248. The Court emphasized, however, that mere service in a combat zone, in and of itself, was insufficient to support a diagnosis of PTSD. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examination. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes providing additional VA examinations by a specialist when recommended. Hyder v. Derwinski, 1 Vet.App. 221 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121 (1991). Under the circumstances, the Board finds that additional development of the record is required. The case is, accordingly, REMANDED to the RO for action as follows: 1. The RO should contact the veteran and request that he furnish the names, addresses and dates of treatment of all medical providers from whom he has received treatment for any disability since 1991, and at any time for PTSD. He should execute the proper authorization forms for the release of this information. 2. The RO should obtain the records referred to above by the veteran and the administrative decision and the medical reports underlying that decision pertaining to his grant of Social Security benefits. The attention of the Social Security Administration should be invited to 38 U.S.C.A. § 5106 (West 1991). The RO should make sure that it obtains the records from the Feliciana Forensic Facility, Jackson, Louisiana. 3. The RO should request from the veteran a statement containing as much detail as possible regarding the alleged stressful events to which he was exposed in service. The veteran should be asked to provide specific details of the claimed stressful events during service, such as dates, places, detailed descriptions of the events, his service units in Vietnam, duty assignments and the names, ranks, unit of assignment and any other identifying information concerning any other individuals involved in the events. The veteran should be told that the information is necessary to obtain supportive evidence of the stressful events and that failure to respond may result in adverse action. 4. Following receipt of the information requested above, the RO should contact the U.S. Army and Joint Services Environmental Support Group to document the stressor(s) reported by the veteran. The address is as follows: U.S. Army and Joint Services Environmental Support Group, 7798 Cissna Road, Springfield, Virginia 22150. Thereafter, any additional development deemed necessary should be accomplished. 5. Thereafter, the veteran should be afforded a VA general medical examination to determine the nature and severity of all disabilities present. All indicated tests should be conducted. The claims folder must be made available to the examiners prior to the examinations. The examiner should render an opinion as to what effect the disabilities found have on the veteran's ability to work, and state whether the veteran's disabling conditions are susceptible to improvement through appropriate treatment. The factors upon which the opinions are based must be set forth. The claims folder should be made available to the examiner prior to the examination. 6. The veteran should then be afforded a VA psychiatric examination to determine whether he suffers from any psychiatric disorder, and, if so, its nature and severity. The examination report should include a detailed account of all pathology found to be present. If there are different psychiatric disorders, the examiner should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be dissociated from one disorder or another, it should be specified. If a diagnosis of PTSD is appropriate, the examiner should specify the credible "stressor(s)" that caused the disorder and the evidence upon which he relied to establish the existence of the stressor(s). He should also describe which stressor(s) the veteran reexperiences and how he reexperiences them. The psychiatrist should describe how the symptoms of an identified psychiatric disorder affect the appellant's social and industrial capacity. The report of the examination should include a complete rationale for all opinions expressed. All necessary special studies or tests, including psychological testing and evaluation such as the Minnesota Multiphasic Psychological Inventory are to be accomplished. The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF) provided in DSM-III-R. It is imperative that the physician include a definition of the numerical code assigned under DSM-III-R in order to comply with the requirements of Thurber v. Brown, 5 Vet.App. 119 (1993). The entire claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. The claims folder should be made available to the examiner prior to the examination. 7. When the requested development has been completed, the case should be reviewed by the RO and a rating action prepared which list all the veteran's disabilities and the percentage evaluation assigned each disability. 8. The RO should formally adjudicate the issue of entitlement to service connection for PTSD. In reaching its determination, the RO should make findings under Zarycki as to whether the veteran "engaged in combat with the enemy," and, if so, whether his lay testimony is credible and "consistent with the circumstances, conditions, or hardships of such service." If it is determined that the veteran was not engaged in combat with the enemy, or that the claimed stressors are not related to such combat, then the RO must determine whether his lay testimony is supported by service records in order to establish a valid stressor. 9. If the decision remains adverse to the veteran, he should be furnished a supplemental statement of the case which includes a recitation of the percentage rating for each disability; which cites the appropriate diagnostic codes and provides a discussion of their applicability to the veteran's disabilities; and which discusses the application of the two standards (average person and unemployability under 38 U.S.C.A. § 1502(a); 38 C.F.R. §§ 3.321, 4.15, and 4.17) by which a permanent and total disability rating for pension purposes may be assigned. It should also summarize the relevant evidence with respect to the claim for service connection for PTSD and provide reasons why the claim was denied. Thereafter, subject to current appellate procedures, the case should be returned to the Board. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 EUGENE A. O'NEILL THOMAS J. DANNAHER RICHARD B. FRANK JACQUELINE E. MONROE WARREN W RICE, JR. CHARLES E. HOGEBOOM Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1992).